- (1.) -HEARD Shri C. B. Singh and Shri Manoj Kumar Singh for the petitioner. Shri Rakesh Pande appears for respondent No. 2. With the consent of Counsels for the parties, the matter was finally heard and is being decided at the admission stage.
(2.) SHRI Ashwani Kumar-respondnet No. 2 filed an election petition No. 3 of 2006, challenging the elections of Shri Shanker Lal-the petitioner as member of Ward No. 19 Qasba Mungara Badshahpur, Tehsil Machhali Shahar, District Jaunpur, held oil 31. 10. 2006 in which he was declared elected on 6. 11. 2006 with the margin of three votes.
(3.) THE Additional District Judge, Court No. 1, Jaunpur-Election Tribunal, has by his order dated 31. 1. 2008, directed recount of votes on 1. 3. 2008. The petitioner challenged the order of recount of votes in Writ Petition No. 11002 of 2008. The Court, by its judgment dated 27. 2. 2008, dismissed the writ petition with the following findings, after narrating the case law on the subject :- "in the present case there is clear assertion in para 11 of the election petition that out of 406 ballots caste on 31. 10. 2006. 197 were in favour of the election petitioner and 190 in favour of the returned candidate. Ten invalid votes were malafidely included in the ballots of elected candidate and that he was declared elected with a difference of three votes. The election petitioner was injured and was walking with the help of a walking stick. He was not able to stand for long. His request to change the counting agent was not accepted and that he was not allowed to sit on the chair. He, however, led evidence of Shri Dharmendra Kumar, who was present at the time of counting as election agent of one of the candidate to the post of Chairman. Shri Dharmendra Kumar deposed in his direct evidence that the election petitioner had secured 197 votes as against 190 votes polled in favour of the returned candidate. Nineteen votes were declared to be invalid out of which ten invalid votes were counted in favour of the election candidate and this fact was told by him to Shri Ashwani Kumar. The submission of Shri P. N. Tripathi that Shri Dharmendra Kumar, P. W. 2 could not say as to which of the vote was invalid and on what ground was not found to be good ground to disbelieve his statement. On the basis of clear pleadings, which were supported by statement of Shri Dharmendra Kumar, the Tribunal has found that there was irregularity in elections in as much as ten invalid votes improperly counted in favour of the returned candidate. This, however, is prima facie finding based on evidence on record for the purpose of recount of votes. The Election Tribunal has concluded that with these facts it was necessary and in the interest of justice that the votes be recounted. I do not find that the Tribunal has committed any such error, which may require interference form this Court. There was clear pleading supported by admissible and reliable evidence to arrive at a prima facie finding that ten invalid votes were counted in favour of returned candidate. Shri Dharmendra Kumar, P. W. 2 was present at the time of counting and has supported the plaint allegations. The petitioner did not lead any evidence to prove his defence. The prima facie finding is based on evidence led in the proceedings on which it was found that recount would be in the interest of justice. The writ petition is dismissed. ";